only expresses a similar opinion in his works, but proves by facts, particularly in his commentaries on the conflict of laws," the great advantage which able jurists may derive from the study of the Roman law. Chancellor Kent, in his commentaries has the following: "But the more liberal spirit of modern times has justly appreciated the intrinsic merit of the Roman system. Sir Matthew Hale, according to the account of bishop Burnett, frequently said, that the true grounds and reasons of law were so well delivered in the digest, that a man could never well understand law as a science without first resorting to the Roman law for information, and he lamented that it was so little studied in England. And in Lane v. Cotton, that strict English lawyer, lord Holt, admitted, that the laws of all nations were raised out of the ruins of the civil law, and that the principles of the English law were borrowed from that system and grounded upon the same reason." And again, "The rights and duties of tutors and guardians are regulated by wise and just principles. The rights of absolute and usufructuary property, and the various ways by which property may be acquired, enlarged, transferred, and lost, and the incidents and accommodations which fairly belong to property, are admirably discussed, and the most refined and equitable distinctions are established and vindicated. Trusts are settled and pursued through all their numerous modifications and complicated details, in the most rational and equitable manner. So the rights and duties flowing from personal contracts, expressed and implied, and under the infinite variety of shapes which they assume in the business and commerce of life, are defined and illustrated with a clearness and brevity without example. In all these respects, and in many others which the limits of the present discussion will not permit me to examine, the civil law shows the proofs of the highest cultivation and refinement; and no one who pursues it can well avoid the conviction, that it has been the fruitful source of those comprehensive views and solid principles, which have been applied to elevate and adorn the jurisprudence of modern nations."1 Mr. Hoffman, in one of his works, says, "The American law student will also with pleasure bear in mind that in all of these, and in numerous other particulars, in the jus privatum, we have conformed our law to the Roman model. The truth is, that the numerous departures of the American law which have taken place since the middle of the last century, from the law of our forefathers, have been little else than so many approximations to the Roman code." ... "Are there not weighty reasons why the learning of this country should be enriched and adorned by the splendid results of the erudition, wisdom, and labors of jurists, aided and fostered by imperial munificence. Have we not in our codes adopted and amalgamated the doctrines of the civilians to a greater extent than our mother country?" "We may adopt with perfect truth the remark of Arthur Duck, when speaking of the authority of the civil law in Scotland, that it obtains here as there in casibus omissis, for it is unquestionable that there are large departments of our jurisprudence, in which (in the absence of more authoritative law) we may and ought to resort to the civil law for light, for instruction and for authority. We say authoritative law, because, having adopted the particular system as a portion of our scheme of jurisprudence, and that having sprung from the Roman code, we are bound in casibus omissis (and so we have done by long usage) to resort for illustration and authority, to the pages of the digest and code, in the same manner, and with the same views as we 11 Kent's Commentaries, 546. Hoffman's course of legal study, second edition, page 518. at present resort to the modern British authorities on innumerable other subjects. In our courts of admiralty and maritime jurisprudence, also, and in our courts of equity, on various subjects, as likewise in the law of contracts, of executors, of bailment, legacies, presumptions, accession, confusion, extinguishment, set-off, &c., we should appeal to the civil law with as much confidence as if we were resorting to an authoritative source, &c. The law of Rome, in such cases, is not, as has been justly remarked by a Scotch writer,' our law from any authority, either of the republic or of the emperors; but it is authoritative, because we have made it so (the people exercising the same right as in the formation of their common law) by adopting certain systems of laws which were brought into existence and made known to our forefathers only by the Romans. And these systems are to be found in the Justinian and other Roman codes." As the wisdom of not passing by unnoticed the Roman law in any endeavors to amend the existing laws has thus been rendered manifest, it may not be considered out of place to give here the opinion of the great Leibnitz on the Roman jurisprudence. Dixi sæpius post scripta Geometraum nihil extare, quod vi ac subtilitate cum Romanorum jureconsultorum scriptis comparari possit; tantum nervi inest, tantum profunditatis. "I have often said that after the writings of the geometricians there is nothing extant which in force and acuteness can be compared to the writings of the Roman jurisconsults, there is in them so much nervousness, so much profoundness."1 This manifoldness, in the English law, expresses at the same time the great activity of the internal life of the nation which could not be restrained to one manifestation, but 'Wilde's Lecture, Edinb. 1794. "Leibnitz, Opera, vol. 4, pt. 3, p. 267. which has secured for itself the liberty of expanding in all directions. Thus societies and individuals find under such a system an opportunity for the development of their own individuality. The danger, however, inherent in its nature would seem to be, that a want of unity and consistency would manifest itself in the adaptation of this law by each state to its own wants, and that the differences thus inevitably ensuing between the systems of the different states would tend to separate and disorganize. At the same time, however, the common basis of all the codes would prove a bond of sympathy and mutual relation between them. And lest from this same multiplicity there should be a want of certain fixed and clearly defined principles, preserving a harmony throughout, we must seek to find and exhibit a unity in the whole. These sources of law, so far as they were applicable to colonies, were, it is well known, introduced here during the period of colonial administration, and with some necessary modifications were retained after the declaration of independence. It may be said, of the confusion of these English laws, just what Livy, long before the appearance of Justinian's code, said of the Roman laws: Nunc in hoc immenso aliarum super alias acervatarum legum cumulo fons omnis publici privatique est juris, and what Bacon said of a similar state of the law: "Non sunt pejores laquei, quam laquei legum; si, numero immensæ, et temporis decursu inutiles, non lucernam pedibus præbeant, sed retia potius objiciant. There are also in the Faust of the German poet Göthe, some observations on the tendencies of the common and statute law, unless continually amended so as to suit the altered state of society, which apply very aptly to this subject: Mephistopheles : Law and statutes are descending, Slowly pass from place to place; For innate rights no voice is heard In the original: "Es erben sich Gesetz und Rechte Wie eine ew'ge Krankheit fort, Sie schleppen vom Geschlecht sich zum Gecshlechte, Vernunft wird Unsinn, Wohlthat Plage; Weh dir, dass du ein Enkel bist! Vom Rechte, das mit uns geboren ist, Although this state of things is found to exist in almost all countries, yet, by an attentive solicitude bestowed upon the adjustment of the individual relations of the people, this great amendment, the Americans, aided by the experience of modern times, and an increasing civilization, may effect, and thereby gain a high degree of celebrity; and the most satisfactory expectations may be entertained of the future state of its civil jurisprudence, which, from a just regard to their own interests, ought to be an object of the utmost importance to this active and enterprising people. For what greater incentive is there to industry than entire legal security? Who would attempt the cultivation of land, if the rights of property were not protected, and the produce of the soil secured against the cupidity of the first comer? Could industry flourish without that protection, or deprived of the hope of enjoying the fruits of its labor? Industry and legal security mutually depend on each other. They are like the soul and nerves of the human body; working only in harmony when both are in a healthy state. There |